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Court of Appeal Grants Our Client a New Trial, Overrules ICBC Victory Due to Unfair Tactics

Posted on by Mussio Goodman

Mussio Goodman Achievement Successful Judgment in Han v. Park 2015

We are pleased to announce that the British Columbia Court of Appeal has ruled in our client’s favour in Han v. Park 2015 BCCA 324.

In 1999, our client was involved in an car accident which caused significant injuries and substantial wage loss over the following years.

Prior to hiring our firm, she was represented by another lawyer during her initial trial in 2013. Unfortunately, and in part to several strategic and legal mistakes, our client was awarded only a fraction of what she sought, and what her claim is actually worth.

Understandably, our client sought to challenge what she believed was a miscarriage of justice. We agreed to help and successfully appealed the jury’s decision to the BC Court of Appeal on several grounds.

The Court of Appeal agreed that the trial judge was in error by allowing the jury to read several documents that were largely irrelevant to her case and only served to prejudice our client. It is not unusual for an ICBC defense lawyer to attempt such tactics, but unfortunately our client’s previous lawyer did not raise any objections.

 

Our Argument and Court’s Decision

However, we argued and the Court agreed that the trial judge should have properly exercised her function as a gatekeeper and prohibited such inflammatory evidence from being viewed by the jury. The Honourable Madam Justice Stromberg-Stein, writing for the unanimous three-judge panel, ruled as follows:

[34] …The inclusion of some of the clinical records and material contained in the Exhibit had the effect of portraying the appellant as a difficult, manipulating, and stubborn individual. As appellant’s counsel states, this portrayal shifted the focus of the jury to the appellant’s negative character traits, rather than to the main issues of the trial.

[35] The respondents’ trial counsel assured the judge all the documents in the Exhibit would be referred to in the cross-examination of Ms. Han but they were not. Some of the documents were irrelevant, some were prejudicial, and some were inflammatory. The Exhibit was marked outside the presence of the jury – the trier of fact – which is an irregularity. There was no document agreement in place, so the basis for the appellant’s consent to the admission of the Exhibit is not clear. Even with consent, the trial judge is always the gatekeeper.

[36] In my view, the Exhibit should not have been admitted en masse. Some of the documents and records should not have been admitted at all, as their admission was highly prejudicial and resulted in a substantial wrong or miscarriage of justice.

[37] On this ground alone, it is in the interests of justice to order a new trial.

Our client has been fighting for fair compensation from ICBC for over 15 years, and we are proud to have played a supporting role in her journey. This case is also a reminder from the highest Court in our province that the unfair tactics employed by ICBC and their lawyers will not be tolerated.

The Perils of Using Social Media During an ICBC Injury Claim

Posted on by Mussio Goodman

Mussio Goodman Advises Clients to Be Aware of What they Put on Social Media that May Affect Their Claim

We have long advised our clients to be careful about what they post on social media while in the midst of an injury claim. The reason is that we know ICBC’s adjusters and defence lawyers will review social media posts to see whether an injured person’s claims are supported by their behaviour on social media websites such as Facebook, Instagram, and Twitter.

A recent decision of the British Columbia Supreme Court highlights the importance of this advice.

In Tambosso v. Holmes, the plaintiff was involved in two car accidents, and her claim for damages arising for her injuries went to trial. She made a claim for her physical symptoms, but her most significant claims were for psychological injuries.

The trial judge found that while the plaintiff suffered some injuries, many of her claims about both her physical and psychological injuries were fabricated and she was not a credible witness. In coming to his conclusion about the plaintiff’s credibility, the trial judge relied heavily on entries from the plaintiff’s Facebook page.

The trial judge found that, “[t]hroughout her evidence, the plaintiff testified that as a result of the PTSD and stress suffered as a result of the aftermath of the 2008 accident, her life completely changed…

However, he went to state that, “[o]ne hundred and ninety-four pages of Facebook entries from [the plaintiff’s Facebook page…were entered in evidence… There are extensive status updates, photographs, and other posts…that at face value appear to directly contradict her evidence regarding her alleged injuries, and her state of mind following [the accident].”

The trial judge examined status updates, photographs, and public messages between the plaintiff and her friends. In drawing extremely negative conclusions about the plaintiff’s credibility, the judge concluded his social media analysis as follows:

[174]     I conclude that based on this Facebook evidence, in particular the photos of continued attendance at social events and posts from friends, that the plaintiff had a very active social life following the 2008 and 2010 accidents. The social life portrayed by her Facebook profile is consistent with the social life of someone who went through three engagements, the birth of a child, and a marriage. It is completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a “homebody” whose “life sucked” and “only had friends on the internet”.

The lesson that should be taken from this case is the importance of minimizing your social media presence while in the midst of claim for personal injuries, because even if you are a completely honest and credible person, a seemingly innocent social media post could be used against you by ICBC.

Court Awards Our Client $98,700 At Trial After ICBC Offered Zero Dollars.

Posted on by Mussio Goodman

Mussio Goodman Obtain $98,700 for Our Client At Trial

We are pleased to announce that, after ICBC refused to settle our client’s claim at any number, we proceeded to trial in the Supreme Court of British Columbia and obtained an award of $98,700 for pain and suffering, wage loss, and medical expenses.

In June 2009, our client was violently t-boned by an unknown vehicle that fled the scene. Our client was unable to note the license plate of the hit-and-run driver.

Despite suffering numerous injuries, missing work, and incurring significant medical expenses as a result of the accident, ICBC refused to offer any money for compensation.

Under the law, an injured claimant is still entitled to up to $200,000 in compensation from ICBC even though the identity of the hit-and-run driver is never found. However, the law first requires claimants to make “all reasonable efforts” to determine the identity of the hit-and-run driver. This requirement was discussed in one of our previous posts, “Hit and Run Accidents: What you Need to Know.”

In our case, ICBC relied on this technicality in attempt to deny our client any compensation.

 

Mussio Goodman’s Argument Against ICBC

After our client’s accident, he was in shock, his airbags had deployed in his face, it was dark out, and the at-fault motorist fled the scene almost immediately. He then relied on his passenger (who had an injury claim of his own) as well as his lawyer to post “Witness needed” signs near the accident scene, follow up with the police, and put an ad on Craigslist.

ICBC argued that because the client didn’t personally take these steps, he should be denied any compensation for his injuries.

After seven days of trial, Madam Justice Baker of the Supreme Court of British concluded that our client was entitled to rely on the efforts made by his passenger and his lawyer to ascertain the identity of the unknown driver:

 I am not persuaded [by ICBC], however, that a party may not rely on the actions taken by an agent or agents in order to comply with the statutory obligation.  In many circumstances, the claimant may be unable to personally take steps – because he or she has suffered a significant injury, for example, or is hospitalized following the accident.

Where there are a number of parties involved in an accident, each of whom is advancing a claim for damages, as in this case, it makes little sense to require that each of them personally post signs at the accident scene or post advertisements.

Madam Justice Baker went on to award significant damages to our client, as well as costs of the litigation.

If you have been injured in a hit and run accident, feel free to contact us to ensure all statutory requirements are met so your claim is not at risk of being dismissed.

Eric Goodman Interviewed by Huffington Post on $1.5 Million Brain Injury Award

Posted on by Mussio Goodman

The Huffington Post has Recently Interviewed Eric Goodman on Winning his Client $1.5 Million at Trail

A recent case in the British Columbia Supreme Court has made headlines across the province. Colloquially referred to as the “Dominatrix Case”, the lawsuit involved a young girl who, after suffering a moderate brain injury in a motor vehicle accident, went on to pursue a career as a sexual dominatrix.

The Court found that the brain injury she sustained dampened her ability to make wise and low-risk life choices, and was therefore responsible for her foray into this rather taboo profession.

The Huffington Post recently featured the case and interviewed the Plaintiff at length. The article also discussed the broader implications of the Court’s decision, during which Eric Goodman provided the following analysis:

Cases where someone must show how an injury compelled a job switch after an accident usually involve heavy labourers forced into more sedentary work, said Eric Goodman, a personal injury lawyer based in Vancouver.

“This case further affirms the prevailing medical wisdom that even a mild traumatic brain injury can dramatically change one’s personality and decision making processes, often permanently and with far-reaching negative effects on one’s quality of life and earning capacity,” he told HuffPost B.C.

Goodman applauded the court for disregarding Afonina’s pre-accident teen “quirks” and focusing instead on evidence that she had a bright and prosperous future ahead of her before the crash.

“It was heartening to see the court refuse to judge the book by its cover,” said Goodman.

Supreme Court of Canada Blocks ICBC’s Attempt to Remove Mussio Website

Posted on by Mussio Goodman

The Supreme Court of Canada Ruling Sided with Our Client, ICBCAdvice.com

As previously discussed, the BC Court of Appeal rejected ICBC’s attempt to block the website www.icbcadvice.com, an independent resource to assist claimants in dealing with ICBC. Wes Mussio acted as counsel for the website and is also listed as a featured writer.

ICBC appealed the decision to the Supreme Court of Canada.

 

Supreme Court of Canada’s Decision

As reported this week in the Vancouver Sun, we are pleased to announce that the Supreme Court of Canada declined to review the Court of Appeal’s result:

“We are very happy to see the case finally come to a close with the Supreme Court of Canada dismissing ICBC’s case in its entirety,” said lawyer Wesley Mussio, who represents website operator Stainton Ventures Ltd..

The Supreme Court of Canada ruling was released Thursday.

“This result not only helps maintain the public service website, ICBCadvice.com, but also allows dozens of other websites that use the term ‘ICBC’ to continue to operate,” Mussio said. “Indeed, a simple Google search results in dozens of websites that use ICBC in their name. Had ICBC been successful, it would have had a major impact on many websites run by ICBC service providers including lawyers and repair shops. All these websites would have had to shut down or change their names had the courts sided with ICBC.”

 

ICBC Comment on the Decision

Spokesman Adam Grossman said Thursday that ICBC is disappointed with the court decision.

“We had pursued this case because we have an obligation to prevent customer confusion and believed some customers might see the domain name and think the website and its content are being provided by ICBC, when in fact it’s being provided by a third party. We always seek to ensure our customers clearly know when they’re dealing with us and when they’re dealing with others.”

According to Stainton Ventures, the website started in 2006 to help the public deal with ICBC on injury or property damage claims.

ICBC demanded that the website be taken down and the domain name be transferred to ICBC. The insurer argued in B.C. Supreme Court that it owned the trademark “ICBC’ and that Stainton Ventures were infringing on ICBC’s rights.

In 2012, the B.C. Supreme Court dismissed ICBC’s claim. ICBC lost again last year before the B.C. Court of Appeal.

In the 2012 decision, Justice Christopher Grauer ruled ICBCadvice.com’s use of ICBC does “not constitute misrepresentation because they are not likely to deceive the public.”

Mussio noted Thursday that anyone visiting the website would quickly learn that it is an independent entity with no involvement with ICBC.

“In fact, it’s very clear that the website gives information that is contrary to ICBC’s interests, particularly with respect to educating members of the public on how to deal with the insurer.”

He said the site “can now be revamped to further assist the public on how to handle ICBC injury and property damage claims.”